Monday, January 5, 2009

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

When Bill Richardson announced that he was withdrawing from consideration for a position as Secretary of Commerce, I predicted that this could actually help Blagojevich and Burris. Richardson was forced out because Obama would have had a difficult time defending him in confirmation hearings while a grand jury investigates whether he was involved in a "pay to play" scheme with a large donor. Democrats, including Obama, have taken a hard-line approach with Blagojevich, who also faces pay to play accusations, demanding that he resign and refusing to seat Burris, whom Blagojevich selected to fill a vacant Senate seat.

Now that Democrats see (or remember) the implications of rushing to condemn individuals before facts, they will probably retreat from such a strong line on these matters. Indeed, Reid had already softened his public stance on Burris during an interview on Meet the Press, and he now suggests that Burris might have a seat at the Senate table:

Senate Majority Leader Harry Reid opened the possibility Sunday that former Illinois Atty. Gen. Roland Burris might serve in the Senate despite the aggressive opposition of Democratic leaders to his appointment by a scandal-tarnished governor.

"I'm an old trial lawyer. There's always room to negotiate," said Reid, a Nevada Democrat, on NBC's "Meet the Press."

When pressed by host David Gregory on whether there was a possibility Burris might ultimately be seated, Reid responded, "That's right."

The fact that Reid's employed more flexible rhetoric on the same day that Richardson formally announced his withdrawal is probably not coincidental. Nonetheless, a Senate aide says that Reid's comments "were not meant as an overture but merely an attempt to leave open the possibility of a negotiated settlement, and said that leaders remained determined not to seat Burris."

Furthermore, Reid continues to claim the authority to exclude a lawfully appointed Senator:

Under the Constitution, Reid said, "we determine who sits in the Senate. And the House determines who sits in the House. "So there's clearly legal authority for us to do whatever we want to do. This goes back for generations."

Most constitutional law scholars who have addressed this issue, however, seem to disagree with Reid's approach. Despite his rhetoric to the contrary, the objections of constitutional law scholars possibly informs Reid's moderation as well.

Tommy, thanks for commenting. I think the most ironic thing is that Richardson clearly "bargained" for the Cabinet post by endorsing Obama, but is kicked out because he may have "bargained" with a campaign donor for government contracts.

Regarding the "bargaining" point you make in your latest comment, Darren, it's becoming clear to me that Richardson may have had to bargain for a cabinet position of lesser stature than he originally wanted and eventually settled for Commerce. All the early talk was that he was on top of the short list for Secy. of State.

The question is: did the Obama Transition Team have an inkling of the pending investigation of Richardson and decide that he could withstand the scrutiny for the Commerce post but not the more high profile scrutiny for State?

Of course another theory might be that Hillary Clinton had been promised State early on in exchange for her support in the general election, meaning that Richardson was never in serious contention for that post.

Hey, Nell. Yes - conspiracy theories are fun. But there are so many opporutnities to "theorize" about conspiracies these days, that my has begun to hurt. Anyway, I heard a lot of rumblings about Richardson as Secretary of State as well. But I also know that Obama is probably the most calculating - but sublty - of politicians. So, I imagine that he promised them something, but probably held out on specifics until the end -- although Clinton may have received more information than others, because of her role in the election.

I honestly believe that Obama knew more than his team asserts -- or that they could have found out information. A presidential background check of a pending grand jury investigation could reveal some information. But they say it did not. I imagine that they thought they could push it through, but after the hard line with Burris/Blago, had to re-assess.

I'm not sure who is validating whom here, Darren, but my point (one of them anyway) was exactly the one you were making in your last paragraph, to wit: the Obama team thought they could squeak Richardson through at Commerce, but not necessarily at State, until they dug in their heels on Blago/Burris.

I read today that Illinois Secy. of State Jesse White has essentially admitted that his refusal to certify Burris's appointment is more an act of civil disobedience than an action based in Illinois law. Darren, have you thought about researching the Illinois statutes to determine exactly what is the duty of the SoS in this instance?

You know you neglected to tell us exactly "what" has begun to hurt when you contemplate conspiracy theories these days. Freudian slip? :)

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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